img_1668The young women approach tourists in Times Square and pose for photos, wearing nothing but a thong and a feathered headdress, their bare breasts painted with patriotic colors in a thin simulation of a bikini top. Then they ask for a tip.

Are they performance artists?

Are they panhandlers?

And, perhaps most important, can the city move against them without violating their right to free speech?

Those are among the questions the courts may have to answer if Mayor Bill de Blasio of New York pushes ahead with plans to rein in the activities of the women and their handlers, who have come under fire from business leaders and politicians worried they are driving away tourists.

img_1684Whatever action the city takes to control the women, it will face legal challenges at every turn. Civil rights lawyers argue the women are bare-breasted panhandlers, and so they are protected, first by two state high-court rulings that made it legal to go topless and to panhandle, and then by the free-speech clauses in the state and federal constitutions.

So complex is the issue that Mr. de Blasio, who has angrily vowed to put a stop to the practice, suggested that one option would be to simply tear out the pedestrian plazas where the women operate.

The mayor held a three hour meeting with police and city officials on how to restrict the women’s activities before deciding more study was needed, his aides said. Subsequently, he announced that he had formed a task force of city officials, local politicians and business leaders and asked them to come up with strategies.

“It’s complicated, and he wants to get it right,” the mayor’s spokeswoman said.

At least temporarily, Mr. de Blasio seems to have gotten his wish. Times Square recently was virtually free of the women, who have adopted the label desnudas, or Spanish for naked, and who were apparently lying low after all of the critical attention.

But if the sudden high-level mobilization — even Gov. Andrew M. Cuomo, a fellow Democrat, has called for their removal — seems extraordinary for a dozen or so women in body paint, it is partly because their presence stirs up many questions about civil rights, as well as prurience and gender equality.

clip_14-3Some see a double standard at work. While a state law limits the ability of women to work topless, there is no similar law regarding shirtless men. One well-known example of the latter is the Naked Cowboy, who appears in nothing but his underwear, hat and boots (and his guitar), and has become as much a part of Times Square as its giant billboards.

Even some social media sites, perhaps the new public sphere, maintain the same distinction; some users of Instagram, for example, have called on the site to drop its restrictions on pictures of women’s nipples.

clip_16A 1992 Court of Appeals ruling on the state law said that women could indeed be topless in public, but let stand the prohibition against public female toplessness for commercial purposes. The court also did not settle the issue of whether the law discriminated against women, though some judges believed that it did.

Some legal scholars say that ruling, in a case of seven women who purposely tested a topless ban in a Rochester park, seems to leave a door open for the city to arrest the desnudas for being topless if it could be proven they are engaged in a business. They note the United States Supreme Court has held that limits on nudity at erotic dance clubs are not violations of free speech.

“It sounds like it is commercial,” said a First Amendment expert at U.C.L.A. School of Law. “The city could say if you are naked in a public place for a commercial purpose, we are going to apply the law to you.”

Holly Van Voast, an artist who was arrested in New York several times for going topless and filming the reaction of passers-by, sued the Police Department and obtained a $40,000 settlement. She said the Court of Appeals should revisit the law and finally settle whether the double standard for men and women in New York is discriminatory.

She also said she did not view the activities of the desnudas as true artistic expression. “It’s obviously commercial,” she said. “That’s not supposed to be right as far as the ruling goes.”

City officials, however, say arresting the women for indecency is not an option. That is because they can make a strong argument that they are street performers, exempted by the state law and protected by the First Amendment, the officials said.

Furthermore, the state’s highest court also ruled in 1992 that panhandling was a form of protected speech, so unless the women aggressively solicit money, or harass people, they cannot be arrested, the officials said.

“It’s their argument that they are artists, or street entertainers, and not just someone hanging around half-naked,” said the deputy police commissioner for legal matters. “As long as they are performers exercising their First Amendment rights in a lawful way, it’s not a criminal law-enforcement issue that we can address.”

Instead, the mayor’s new task force will look into limiting the number of desnudas or restricting where and when they can operate. Similar “time, place and manner restrictions” have been placed on street vendors in crowded parks.

“They have First Amendment protections,” said Zachary W. Carter, the city’s corporation counsel, “but these protections are not without limitations.”

clip_15Civil rights lawyers argue in response that limiting where the women can ask for tips might still be judged a violation of their free speech. Courts have held that such restrictions cannot discriminate against a group because of its message. But the mayor and other city politicians have said the women’s partial nudity is the reason they would be asked to stay out of certain areas, said a civil rights lawyer. “They have already dug themselves a constitutional hole by declaring bare breasts are the problem,” he said.

A former director of the New York Civil Liberties Union, said the city would also have a hard time arguing in court that the women were blocking traffic or the entrances of buildings, which are common reasons given for putting limitations on speech. “These women can stand there all day” and have people take their pictures, he said.

The city planning commission chairman and co-chairman, along with Police Commissioner of the new task force, said the group would also consider stepping up police enforcement against desnudas, as well as costumed characters, who cross the line from asking for donations into harassment. Changing the physical layout of the area to alter foot traffic, or making it a city park, where panhandling is not allowed, are also options being considered.

“I do believe it’s going to require a blend of approaches,” he said.

That enforcement has already begun. The police arrested one guy who works with a team of desnudas, on a warrant for an unrelated harassment charge.

Times Square was largely devoid of the painted women as some said they were avoiding the area for now because of negative press. One 24-year-old desnuda said the city’s effort to regulate the desnudas was not only unfair, but also a waste of resources.

“They want to criminalize us when we’re not doing anything wrong, and there are bigger problems in the city,” she said.

Mayor Bill de Blasio said that he sees the women parading around Times Square covered in little but body paint not as creative artists, but as pushy panhandlers whose efforts to separate tourists from their money should be regulated.

The topless women, known as desnudas, have attracted more scrutiny than usual this summer amid complaints about their aggressive solicitation of payment to pose for pictures. Mr. de Blasio placed them in the same category as the gaggle of costumed characters that have become nearly synonymous with predatory panhandling in and around Times Square.

img_1229“It’s wrong,” Mr. de Blasio said of the topless women’s tactics, during a news conference. “We are going to look for every appropriate way to regulate all activity that involves either begging, or asking people for a contribution based on, you know, the opportunity to take a picture, for example.” The mayor added, “I don’t like the situation in Times Square, and we’re going to address it in a very aggressive manner.”

Still, Mr. de Blasio acknowledged that reining in the desnudas was complicated by the protections afforded to artistic expression by the First Amendment. “That doesn’t mean we can’t find legislative and regulatory solutions that still fall within constitutional protections,” he said.

The mayor’s staff declined to provide any details about what restrictions he is considering, saying that lawyers were still studying the issue. Toplessness is legal in New York; aggressive panhandling is not.

img_1688A City Council member whose district includes Times Square, said that he and another councilman, were working on a bill that would limit when and where the desnudas and costumed characters could ply their trade. He said that the model would be the “time, place and manner restrictions” the city has placed on street vendors in crowded areas of certain parks, including Central Park and Union Square Park. Those rules created designated spots for a limited number of sketch artists and other street vendors to set up. He said the goal was not to rid Times Square of the characters and other street hustlers but to rein them in so they do not drive away the throngs of tourists. “People come to Times Square from all over the world because it is a little quirky and slightly chaotic and because there’s some allure to that,” he said. “But if it becomes unsafe and creepy, that becomes a problem that we have to address.”

The proliferation of the costumed characters and topless women has gone beyond being the subject of jokes by late-night comedians to being a frequent source of drama and cause for police intervention, president of the Times Square Alliance, said. He said that a survey of people who work in and around Times Square found that 45 percent of them had either had or witnessed an unpleasant interaction with a costumed character or someone else soliciting payment from tourists. During one week in late June, the alliance counted more than 120 costumed characters and 11 “painted ladies” in the area.

The topless women often accost men as they walk through Times Square, grabbing their arms or rubbing up against them while offering to pose for pictures. The costumed characters — outfitted to resemble Elmo or Minnie Mouse or the Incredible Hulk — have been employing similar tactics for years. They pose with wide-eyed children, then seek payment of $5 or more from their parents, sometimes berating the tourists for not handing over enough money.

One Sunday afternoon, the police arrested a man dressed as Olaf, a character from the movie “Frozen,” after a woman complained that he had spurned her offer of $1 and angrily demanded $20. The allegation did not surprise him at all. This is happening thousands of times a week. If I spend 10 minutes in Times Square, I will witness someone being deeply upset. The Commissioner said he often tells tourists who are being harassed by costumed characters that they do not have to pay them, but he said that he tries to avoid confrontations with the people wearing the costumes. He said he had also consoled people who appeared to have been upset by such run-ins.  “If you talk to someone after they’ve just been ripped off, they are crying and embarrassed,” he said. “We deserve better in our public places.” He said the alliance supported the proposal of regulating the desnudas and costumed characters as businesses. In all the interviews of them he has seen, he said, they have described themselves as workers trying to make a living, rather than artists exercising their constitutional right to express themselves.

clip_13Mr. de Blasio put it this way: “Let’s face it. The women in Times Square, or the furry creatures in Times Square, are engaged in a business. We believe that that opens the door for us to enforce the way we would any other business. And we will do so, while still respecting constitutional rights.”

 Desnudas of Times Square, Topless but for the Paint

Paola Peña, left, and Mey Ovalles, topless and covered in body paint, pose for a photo in Times Square.
Paola Peña, left, and Mey Ovalles, topless and covered in body paint, pose for a photo in Times Square.

Mey Ovalles ignored the snickers of gawking boys and the smartphones snapping photos as she clutched her bra to her chest and her bare skin became an opaque shade of blue with white sparkles.

She shielded her nipples until they were cloaked with brush strokes, though her curvy, sun-kissed body — with the exception of a nylon thong — was exposed to hundreds of passers-by in Times Square. She felt naked until she became a canvas of red, white and blue.

This was part of Ms. Ovalles’s daily routine as a desnuda, a Spanish word meaning naked that has been embraced by the women who strut around the Times Square pedestrian plaza topless and covered in body paint to pose for photos in exchange for tips.

Ms. Ovalles is one of the newest participants to join the parade of seminude performers contributing to the carnival-like atmosphere amid the sea of tourists. “Oh my God, it’s a lot of people who see me naked,” Ms. Ovalles, 27, said. “It’s too fun. It’s totally different.”

The earliest sighting of a desnuda seems to date to the summer of 2013, according to posts on social media. But this summer, on any given day, there are at least a dozen young women, primarily Latinas, of all heights and body shapes, strolling through the pedestrian plazas, trying to capitalize on this suggestive performance art.

Ms. Ovalles, who is from Venezuela, had been living in Miami and working as a waitress at a Colombian restaurant when a cousin, Charly Santos, asked if she would like to work with his wife, Paola Peña, in Times Square. He explained the job. Ms. Ovalles was open to the idea but wondered how much money she could make. After Mr. Santos showed her videos of the desnudas on YouTube, she succumbed to the allure of adventure and moved to New York in April.

Ovalles, who said her daily income averages about $300, eats lunch.
Ovalles, who said her daily income averages about $300, eats lunch.

Her daily income varies, she said, but it averages about $300 — around $100 more than she was making in Miami. She said she gets anywhere from $5 to $20 in tips for each photo.

“I don’t do nothing bad because the people like it,” Ovalles said. “It’s like any other job in another place.”

Times Square, of course, is home to a hotbed of performers, an eclectic cast of costumed characters that include superheroes, Disney icons and green Statues of Liberty, all vying for tourists’ money. Their proliferation has provoked turf fights and altercations with visitors and the police, in some cases resulting in arrests. Some of them straddle the line between soliciting tips and aggressive panhandling.

The desnudas have carved a conspicuous niche for themselves — a mix of Las Vegas showmanship and New York flair. Their success has even eaten into the business of more established and better-known risqué performers.

“All the people who come to Times Square are looking for the Naked Cowboy, not the naked women,” said Patricia Burck, who is married to the Naked Cowboy, whose real name is Robert Burck.

Ms. Burck, 28, and her sister, Elizabeth Cruz, 26, wear bedazzled bikinis and play guitar as the Naked Cowgirls year-round. Ms. Burck said tips drop 50 percent in the summer when the seminude women return to Times Square.

“We have some respect for a lot of people especially because there’s kids around,” Ms. Burck said. “I’m still shy to be walking in a bikini. I can’t imagine being naked.”

Putting aside questions of modesty and propriety, the seminude women have the law on their side. The baring of female breasts in public was deemed legal in New York by the state’s highest court two decades ago.

Still, the performers have attracted criticism.

The women have been the subject of about four out of every five complaints received by email and on Twitter since June by the Times Square Alliance, a nonprofit that promotes business in the area. Half are from those who say they are offended by the partial nudity, and the other half are from people who say they do not appreciate being touched by the women or claim they were hassled for money, according to a spokeswoman for the alliance. Most of those who complain say they work in Times Square.

“Yesterday two of them came up to me and pressed themselves up against me trying to get me to stop and take a picture,” David, whose last name was redacted by the alliance, wrote in an email. “Not only was this uncomfortable, but their body paint rubbed off on my suit. This creates an atmosphere that I do not want to bring my kids around.”

Police Commissioner also does not support what the women do, though there is little his officers can do to stop them. “It drives me crazy when at Times Square you see the naked people there covered in body paint as an expression of art,” he said in a recent interview with City & State magazine on the subject of questionable street behavior. Yet, he added: “We’ve researched that top to bottom and we cannot find any law that allows us to interfere with that freedom of expression reflected through art form.”

Many others do not object at all to the seminude women: They include men of every age as well as women who applaud the liberation of the female breast and who are fans of body art. Others embrace the painted women who unabashedly bare their bodies as another aspect of unpredictable New York City fun.

“They’re naked, but it’s still covered,” one woman said. “I’m not offended.” Her husband added, “We’re open-minded people.”

Ms. Ovalles insisted that her body was a form of artwork. Nearly every day, Ms. Ovalles, Mr. Santos and Ms. Peña leave their one-bedroom apartment in Queens toting a large drawstring bag stuffed with wedge heels, sandals, paint, feathered headdresses, plenty of water and soft wipes for the start of their 10- to 12-hour day.

As they work, Mr. Santos sits at a table in the center of the plaza to touch up Ms. Peña and Ms. Ovalles as well as keep an eye out for anyone who tries to grope them. Other desnudas’ boyfriends, who double as painters, sit together at the table and borrow one another’s brushes.

Ms. Ovalles plans to return to Miami in September, when the weather in New York becomes too cool for her. She has also considered returning to her career as a flight attendant, a job she left behind in Caracas, Venezuela.

For now, she is focused on her work here. “You don’t have much time,” she said. “Just sleep and Times Square.”